Tuesday, September 11, 2012

Bananas (UPDATED)

There was a decision in the Warhol Foundation-Velvet Underground lawsuit, but the press reports aren't getting it quite right. Here's Rolling Stone, for example, with the headline "Velvet Underground Lose Andy Warhol Copyright Claim," and the following lead: "The Velvet Underground do not have a valid copyright claim on the Andy Warhol artwork on the cover of the band's 1967 debut, a federal judge ruled ...." And in their morning round-up of links, GalleristNY said: "Judge says the Andy Warhol Foundation does not own rights to banana image, in Velvet Underground suit."

That's actually not what happened. What happened was the band brought several trademark claims, but also brought a claim seeking a declaration that the Foundation had no copyright in the banana image. After the action was brought, the Foundation gave the band a covenant not to sue for copyright infringement, "unconditionally and irrevocably" agreeing never to sue them over the banana image. The court ruled that this "eliminated any justiciable controversy between the parties over copyright" in the image, and so dismissed the claim for declaratory judgment. The Velvet Underground wasn't claiming any copyright on the image, nor did the court rule that the Foundation "does not own rights" to the image.

UPDATE: More from Nicholas O'Donnell: "Reporting of the decision has been spotty at best, however, ranging from declaring a 'win' for the Velvet Underground, to suggestions that the copyright question was decided. In fact, the Court did not reach the copyright issue, and the Velvet Underground still has other trademark-based claims that remain very much alive and unaffected by the decision."